Being charged with unlawful stalking is a serious legal matter that can have long-term consequences. If you’ve been accused of stalking in New South Wales (NSW) or Queensland, it’s essential to understand the legal ramifications and how you can defend yourself. This guide explains what unlawful stalking involves, the legal process, and how an experienced Criminal Lawyer can help protect your rights.
Key Behaviours Constituting Unlawful Stalking
In both Queensland and NSW, the following actions are typically seen as elements of stalking:
Following, Watching, or Approaching a Person
This refers to any action that involves a stalker physically pursuing, monitoring, or approaching their victim without consent. It can involve actions like trailing someone to their home or workplace, or showing up uninvited at social venues or family gatherings.
Digital Monitoring and Cyberstalking
Digital stalking includes actions such as spying on someone’s social media, sending unwanted messages or friend requests, tracking online activities, or installing spyware on another person’s devices.
Repeated Unwanted Contact
Unwanted communication, whether through phone calls, text messages, emails, or in-person encounters, is a significant element of unlawful stalking.
Intimidating or Threatening Conduct
Intimidation ranges from explicit threats of harm to more subtle, yet menacing behaviours that cause fear in the victim. Threats can be physical, emotional, or psychological, and even indirect threats.
Legislative Framework in Queensland and NSW
Queensland’s Approach to Unlawful Stalking
In Queensland, unlawful stalking is governed by Section 359B of the Criminal Code 1899, which criminalises stalking and other related behaviours. The definition was expanded in 2023 to include new forms of stalking, reflecting contemporary concerns about digital harassment and coercive control.
The key elements of unlawful stalking under Queensland law include:
- Monitoring or surveilling without consent: Includes surveillance using cameras or tracking devices.
- Publishing offensive material online: May involve the sharing of personal information or threats online to embarrass, intimidate, or harm the victim.
- Engaging in abusive acts: Verbal or physical threats, intimidation, and harassment.
- Using or threatening violence: Any form of physical violence or threats of harm.
Penalties for unlawful stalking vary based on the severity of the offence:
- Basic offence: A maximum of 5 years imprisonment
- Aggravated circumstances: Up to 7 years imprisonment
- Offences against law enforcement officers: Up to 10 years imprisonment
NSW’s Framework for Unlawful Stalking
In New South Wales, unlawful stalking is governed under Section 13 of the Crimes (Domestic and Personal Violence) Act 2007. The Act includes stalking-related behaviours within the broader context of domestic and personal violence. The penalties for unlawful stalking in NSW can include:
- District Court: Up to 5 years imprisonment and/or a fine of up to 50 penalty units ( $5,500 as at 13 Dec 2024)
- Local Court: Up to 2 years imprisonment and/or a fine of up to 50 penalty units ($5,500).
In both jurisdictions, the focus is on the pattern of behaviour and the impact it has on the victim, rather than the actual fear or harm caused. Importantly, victims do not have to prove they were physically harmed for an offence to be proven in court.
Proving Unlawful Stalking
To demonstrate unlawful stalking, the prosecution must show that:
- The conduct was intentionally directed at the victim: The behaviour must be deliberate and repeated.
- The conduct would reasonably cause fear: This can be inferred from the nature of the behaviour, even if the victim does not express fear directly.
- The conduct occurred on one or more occasions: This includes both isolated incidents and ongoing patterns of behaviour.
The law does not require victims to show they were actually fearful, only that a reasonable person would be made to feel that way by the perpetrator’s conduct.
Modern Challenges and Technological Considerations
Digital Stalking Methods
With the increasing use of smartphones, social media, and other digital technologies, stalking has become more pervasive. Digital stalking methods include:
- Social media harassment: Repeated unwanted messages, comments, or posts directed at the victim.
- Unauthorised access to online accounts: Can involve hacking or phishing to gain control of private emails or social media profiles.
- GPS tracking and location monitoring: The use of technology to monitor the victim’s physical movements.
- Cyberbullying and online threats: Publicly humiliating or threatening the victim through online platforms.
Evidence Collection in Digital Stalking
In modern cases of stalking, digital evidence plays a crucial role, including:
- Social media records: Screenshots, messages, and other digital communications.
- Email and message logs: Saved messages or call logs as proof of unwanted contact.
- GPS data: If available, location data from smartphones or tracking devices
- Device access logs: Evidence of unauthorised access to a victim’s computer, phone, or email accounts.
- Security camera footage: In cases where the perpetrator physically follows the victim, security footage may help establish a timeline of events.
Legal Defences and Exemptions
Not all forms of contact or surveillance are considered unlawful stalking. Some legitimate activities may be exempt, including:
- Reasonable conduct for lawful business or trade: Investigations or actions carried out within the scope of employment or business.
- Genuine industrial disputes: In some cases, conduct related to industrial action may be excluded.
- Legitimate political or public interest activities: If the behaviour is genuinely part of public discourse or political engagement.
- Law enforcement activities: Investigative actions by police or other authorised agencies.
- Reasonable information gathering: For example, gathering information for legitimate personal or professional reasons, such as background checks.
Recent Developments
The legal landscape surrounding unlawful stalking continues to evolve:
- Queensland’s 2023 reforms: The inclusion of coercive control and stronger penalties for aggravated offences reflect growing concerns over stalking in domestic violence contexts.
- Technology-facilitated stalking: Increasing recognition of cyberstalking and online harassment has led to more robust legislative responses and greater penalties.
- Integration with domestic violence laws: Both NSW and Queensland have strengthened the integration of stalking laws within broader domestic violence frameworks.
Conclusion
Unlawful stalking is a grave offence with severe consequences, and being charged with it demands immediate action. Both Queensland and NSW have stringent laws that tackle stalking, including the growing threat of digital harassment.
If you’ve been accused of stalking, understanding the charges and available defences is crucial to safeguarding your future. However, time is crucial – don’t risk your freedom or reputation. Get expert legal representation from one of our Gold Coast and Brisbane Criminal Lawyers or Criminal Lawyers Sydney to start building your defence today.